Michael Mukasey appears before the Senate Judiciary Committee during a hearing on his nomination to become attorney general.
Credit: Diego M. Radzinschi/Legal Times
Initially, one of Michael Mukasey's strongest assets as the attorney general nominee had less to do with who he was and everything to do with who he was not: Alberto Gonzales.
Senators lauded Mukasey as a widely respected jurist, a consensus nominee whose mere presence, in short order, would restore credibility and objectivity to the beleaguered Justice Department. Even liberal interest groups held their fire. But since Day 2 of his confirmation hearings, when he demurred on whether waterboarding is illegal, Mukasey's confirmation has shifted from a sure thing to a close call.
Five Democrats on the Judiciary Committee -- including its chairman, Patrick Leahy of Vermont -- pledged to vote against sending Mukasey's nomination to the full Senate, where several lawmakers, three presidential candidates among them, have publicly withdrawn their support. Only two Democrats on the committee, Charles Schumer of New York and Dianne Feinstein of California, have said they intend to vote for Mukasey.
The reversal of fortune for Mukasey raises doubts about what sort of influence he would wield if he is confirmed.
Ahead of Tuesday's key committee vote, the narrative is strikingly familiar.
In January 2005, Gonzales' nomination was warmly received, and he was praised for his intellect and integrity. His confirmation, like Mukasey's, was assumed until his harshest questioners, Democratic senators in the minority on the Judiciary Committee, fastened onto the 2002 torture memos he had supervised and authored as White House counsel.
The similarities are not lost on Mark Heilbrun, a former staff director and general counsel for the Judiciary Committee during Gonzales' confirmation. "I think that there's an interesting parallel that goes to the heart of this matter," says Heilbrun, now a partner at Jenner & Block's D.C. office who specializes in government investigations and corporate compliance. "People who had read Gonzales' writing and heard him testify on torture issues got the sense that he really didn't know that much about it.
"The strange outcome was that Gonzales was given a pass because senators thought his rudimentary understanding would make him more open-minded on torture issues."
Congress, chastened by the experience with Gonzales, may be holding Mukasey to a higher standard, Heilbrun says.
MUKASEY'S INNER CIRCLE
Mukasey may also suffer from his experience. As a former federal judge, he presided over terrorism trials before the Sept. 11, 2001, terrorist attacks and handled high-profile national security cases in New York.
Because of his background, Heilbrun says, Mukasey shocked senators with his views on separation of powers and his argument that the president enjoys wide powers during times of crisis.
Although the use of torture as a government tool dominated the confirmation hearings for Gonzales and Mukasey, each staked their positions from different camps. Gonzales was a political insider, who as the president's lawyer oversaw the drafting of controversial memos that called the Geneva Conventions "quaint" and "obsolete." Mukasey was a chief judge in one of the nation's busiest and most respected federal trial courts who ruled against the Bush administration in 2002 by finding "enemy combatant" and terrorism suspect José Padilla had a right to a lawyer.
"I think the big difference here is that during Alberto Gonzales' confirmation, the issue really was what advice he had been given on these matters," says Ronald Cass, former dean of Boston University School of Law, and a member of Rudy Giuliani's justice advisory committee. "Here the question is, what is Judge Mukasey's reaction to them?"
In preparation for his hearings and subsequent written answers, Mukasey has insulated himself with a close circle of White House aides and advisers.
A former White House attorney familiar with the nomination process said the president's staff works closely with the Justice Department's Office of Legal Policy and Office of Legislative Affairs in preparing an attorney general nominee for confirmation.
Among those White House aides handling Mukasey are Harold Kim, a former Senate Judiciary Committee deputy chief counsel who is the special assistant to the president for legislative affairs, and William Burck, a deputy assistant and special counsel to the president and a former corporate fraud prosecutor in New York, three former government officials say.
On the outside, two of these sources say, Andrew McCarthy of the Foundation for the Defense of Democracies has been advising Mukasey as well.
Burck, reached by telephone last week, declined to comment and referred all questions to White House spokesman Tony Fratto, who declined to name anybody helping Mukasey. Kim could not be reached for comment, and McCarthy, a former prosecutor who tried the case of blind Egyptian cleric Omar Abdel Rahman and 11 others in front of Mukasey, did not return repeated phone calls.
SLIM MARGIN = LESS POWER?
If confirmed by a slim margin, some observers say, Mukasey's ability to lead Justice for the next 15 months may be severely constrained. Yet others believe a close vote would not affect his tenure as a Cabinet member because a lame-duck administration would naturally limit his agenda.
Nan Aron, president of the liberal advocate Alliance for Justice, says Mukasey's standoff with senators will translate into greater oversight, something Mukasey said he welcomed at his Oct. 17 confirmation hearing.
"The vote certainly will reflect widespread concerns, giving rise to greater need for Congress to maintain oversight," says Aron, who opposes Mukasey's nomination.
Heilbrun agrees Mukasey will have to make concessions. "If Mukasey barely gets by, then maybe he's neutered," the former Senate staffer says. "He'll have to make determinations on whether to turn over documents to Congress and lawmakers may be less patient with him now that he is no longer a consensus candidate."
Others, however, don't see a close vote necessarily as a handicap. Former Attorney General John Ashcroft survived a close Senate vote (58-42), yet left the office with his reputation intact. Gonzales got by with a 60-36 confirmation vote.
Lee Casey, a Baker & Hostetler partner who served in the Justice Department's Office of Legal Policy and Office of Legal Counsel under President George H.W. Bush, says a narrow vote shouldn't cast illegitimacy on any nominee. Casey points out that nearly all of the senators who have said they will oppose Mukasey's confirmation have also shown him tremendous respect. So even if he's barely confirmed, there's no evidence to suggest that his relationship with Congress will have been frayed, Casey says.
"He will exercise every ounce of authority the attorney general has," Casey says. "He's a man that will be able to work with Congress, and the members who are now criticizing him are going to find it very hard not to work with him because of his reputation."
